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A FEDERAL JUDGE SHOWS HOW THE COURTS SHOULD DEAL WITH TRUMP’S LIES
 
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Harry Litman
October 6, 2025
The New Republic
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_ District Court Judge Karin Immergut – a Trump appointee –
issued an opinion that shows courage in judging, without rhetoric or
defiance—only the quiet insistence that facts still matter. _

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District Court Judge Karin Immergut’s adroit opinion blocking
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administration’s plan to deploy National Guard troops to Portland,
Oregon, offers a model for how courts should handle the Trump
administration’s many assertions of “emergency power.”

Immergut, a Trump appointee, faced the recurring judicial dilemma of
the Trump era: how to deal with a president who lies about the
conditions that he claims justify granting him extraordinary power.
Trump has been prodigal in invoking “emergencies”—at the border,
in cities, even in cyberspace—but nearly all have rested on
transparent falsehoods. There has never been an “invasion” of
marauding immigrants, or a fentanyl “siege,” or a crime wave in
Washington sufficient to justify federal deployment. Each supposed
emergency has been a pretext for asserting powers Congress never gave
him. The pattern is as consistent as it is brazen: declare a crisis,
invent the facts to match, and dare the courts to stop him.

The tricky question for the courts—one that supersedes politics and
party—is how to evaluate the assertions of such a chronic fabulist
when the law presumes a good-faith president. Doctrines
of _deference_—judicial respect for an executive’s factual
determinations—make sense when that presumption holds. But with
Trump, it clearly doesn’t.

That’s the backdrop for Immergut’s decision. Trump invoked 10
U.S.C. §12406
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presidents to call in the National Guard of any state to “repel”
an “invasion” or “suppress” a “rebellion”—claiming
[[link removed]] Portland
was “war-ravaged” by “antifa and other domestic terrorists.”
He called the city’s residents “professional agitators” and
“crazy people” trying to “burn down federal buildings.” Aide
Stephen Miller piled on
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calling it an “organized terrorist attack” that made military
intervention “an absolute necessity.”

The state of Oregon and the city of Portland sued, explaining the
obvious: There was no rebellion or threat to public safety. Local law
enforcement was handling sporadic vandalism. They argued that Trump
exceeded his statutory authority, violated the Tenth Amendment that
gives states broad powers to handle their affairs, and trampled basic
separation-of-powers principles.

The administration replied that the president had “determined”
that Portland met §12406’s criteria and that courts must defer to
that determination. This was not a new strategy. In _Newsom v.
Trump_, California Governor Gavin Newsom’s lawsuit against Trump’s
federalization of the California National Guard, Judge Charles Breyer
had considered the same issue and found Trump’s invocation of the
statute legally defective. But the Ninth Circuit reversed him,
declaring that presidential determinations under §12406 deserved a
“highly deferential” standard of review—without explaining what
that meant.

Immergut inherited that fuzzy command and met it with clarity,
modesty, and backbone. Her opinion is a model of calm judicial
courage.

First, she dismantled the factual predicate. The record, she wrote,
showed that protests at the Portland ICE facility were “not
significantly violent or disruptive.” They were small, scattered,
and far from the “rebellion” Trump described. Oregon’s Tenth
Amendment and statutory claims succeeded because, on any fair reading,
Trump’s actions had no legal or factual foundation.

Then came the key move. Immergut acknowledged that courts owe the
president “significant deference.” But, she continued, “‘a
great level of deference’ is not equivalent to ignoring the facts on
the ground.” Courts must ensure that presidential determinations
“reflect a colorable assessment of the facts and law within a range
of honest judgment.”

Trump’s determination, she concluded, failed even that minimal test.
The supposed “rebellion” in Portland was no rebellion at all.
“Defendants have not proffered any evidence,” she wrote, “that
those episodes of violence were part of an organized attempt to
overthrow the government.” His claim of emergency was “_simply
untethered to the facts_.”

In straitlaced judicial prose, that’s as close as one can come to
calling the president a liar.

Moreover, doctrines of deference exist in a tripartite system of
government in which the executive has a coordinate responsibility to
respect the determinations of the courts. But as they have repeatedly,
Trump and the administration made clear they don’t have that sort of
reciprocal respect in mind. In the wake of Immergut’s orders, the
feds actually increased their presence and provocations, augmented
with the use of gas, pepper balls and flash-bang grenades to send
demonstrators scattering.

Immergut had to convene an emergency hearing Sunday night at which she
told DOJ lawyers that the president was “in direct contravention”
of her order. She stiffened the terms to cover “the relocation,
federalization, or deployment of members of the National Guard of any
state or the District of Columbia in the state of Oregon.” A fight
is clearly brewing.

The principle of Immergut’s opinion is of paramount importance
today. “Deference” implies giving the president the benefit of the
doubt. But where there is no doubt, there can be no benefit. Immergut
refused to credit assertions with no basis in the record. She didn’t
grandstand or sermonize; she simply applied the law to the facts. In
doing so, she offered a clear path for other judges confronted with
Trump’s fabricated emergencies: respect the presidency, not the
president’s lies.

If courts follow her example, they can begin to contain the
metastasizing notion that presidential power grows in proportion to
bad faith. The judiciary’s role is not to assume the truth of the
president’s fantasies but to ensure that factual
prhttps://newrepublic.com/authors/harry-litmanedicates for emergency
powers are real. And when district judges, who see witnesses and
evidence firsthand, make those credibility determinations, appellate
courts should defer to _them_—not to executive fiction.

Immergut’s opinion also points to a broader truth about this
political moment. The Trump administration has treated emergency
declarations as political weapons—a way to bypass Congress and claim
martial authority whenever convenient. If courts treat those
declarations as sacrosanct, we edge toward a regime where truth itself
becomes subordinate to presidential whim.

Immergut’s cool, understated opinion offers an exit from that
thicket. It shows that the judiciary still possesses ordinary,
apolitical tools to disable Trump’s most dangerous moves. Fidelity
to fact, she reminds us, is fidelity to the Constitution.

That’s why her decision matters so deeply. In a season of creeping
authoritarianism, Immergut’s opinion shows that courage in judging
doesn’t require rhetoric or defiance—only the quiet insistence
that facts still matter. “Deference” cannot be an automatic pass
to lawlessness and bypassing of constitutional rights. If courts wield
the label of “deference” to greenlight emergency powers based on
lies, the law becomes an ass. Immergut’s opinion lights the way out.

_Harry Litman is a senior legal columnist at The New Republic, a
senior fellow at the USC Center on Communication Leadership and
Policy, and the creator of Talking Feds
[[link removed]], a Substack and podcast on legal
and political issues. A lawyer, professor, and legal commentator, he
is the former U.S. attorney for the Western District of Pennsylvania
and has served as a deputy assistant attorney general at the
Department of Justice. He clerked for Supreme Court Justices Thurgood
Marshall and Anthony Kennedy, and has taught at UCLA School of Law and
UC San Diego. He is also a former legal affairs columnist at the Los
Angeles Times._

_The New Republic [[link removed]] was founded in 1914 to
bring liberalism into the modern era. The founders understood that the
challenges facing a nation transformed by the Industrial Revolution
and mass immigration required bold new thinking._

_Today’s New Republic is wrestling with the same fundamental
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* federal courts
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* rule of law
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* Donald Trump
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* Portland
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* National Guard
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